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IN the SUPREME COURT of PAKISTAN (Appellate Jurisdiction)

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IN the SUPREME COURT of PAKISTAN (Appellate Jurisdiction) IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah C.P.1290-L/2019 (Against the Order of Lahore High Court, Lahore dated 31.01.2019, passed in W.P. No. 5898/2019) D. G. Khan Cement Company Ltd. ...….Petitioner(s) Versus Government of Punjab through its Chief Secretary, Lahore, etc. …….Respondent(s) For the petitioner(s): Mr. Salman Aslam Butt, ASC. For the respondent(s): Ms. Aliya Ejaz, Asstt. A.G. Dr. Khurram Shahzad, D.G. EPA. M. Nawaz Manik, Director Law, EPA. M. Younas Zahid, Dy. Director. Fawad Ali, Dy. Director, EPA (Chakwal). Kashid Sajjan, Asstt. Legal, EPA. Rizwan Saqib Bajwa, Manager GTS. Research Assistance: Hasan Riaz, Civil Judge-cum-Research Officer at SCRC.1 Date of hearing: 11.02.2021 JUDGEMENT Syed Mansoor Ali Shah, J.- The case stems from Notification dated 08.03.2018 (“Notification”) issued by the Industries, Commerce and Investment Department, Government of the Punjab (“Government”), under sections 3 and 11 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 (“Ordinance”), introducing amendments in Notification dated 17.09.2002 to the effect that establishment of new cement plants, and enlargement and expansion of existing cement plants shall not be allowed in the “Negative Area” falling within the Districts Chakwal and Khushab. 2. The petitioner owns and runs a cement manufacturing plant in Kahoon Valley in the Salt Range at Khairpur, District Chakwal and feels wronged of the Notification for the reasons, viz. 1 Supreme Court Research Centre, SCP, Islamabad. C.P.1290-L of 2019 2 (i) the Provincial Government and its line Department lacked jurisdiction to issue the Notification and only Local Government under the Punjab Local Government Act, 2013 (“Act”) could exercise jurisdiction over matters relating to zoning and classification of land, land use, environment control, water sources and ecological balances; (ii) the respondents without a detailed scientific study about underground water levels acted with undue haste in issuing the Notification; (iii) the petitioner was not given the opportunity of hearing under section 3 of the Ordinance read with Articles 4, 9, 10A, 18 and 25 of the Constitution of the Islamic Republic of Pakistan (“Constitution”); (iv) the petitioner’s right to freedom of trade, business and profession under Article 18 of the Constitution was infringed; and (v) the actions of the respondents unreasonably discriminated between the petitioner and other cement manufacturers similarly placed on the basis of materials and information that could not be termed as reasonable or intelligible differentia thereby violating Article 25 of the Constitution. 3. We consider in this case if the Government’s decision of issuing the Notification lacks statutory authority or if factual grounding of the Notification compromises its legal validity. Legality of declaring an area as a “Negative Area” under the Ordinance 4. We first turn to the question whether the Provincial Government can declare an area to be a “Negative Area” under the Ordinance. “Negative Area” under the Notification is where no new cement plant can be set up and no enlargement or enhancement of an existing cement plant can be allowed. The preamble to the Ordinance provides for organized and planned growth of industries in the Province. Organized and planned industrial growth is unquestionably in the public interest and is effectively regulated through section 3 of the Ordinance. No person can establish an industrial undertaking or enlarge any existing industrial undertaking except with the prior permission of the Provincial Government. Generally, such permission can be granted or refused only after extending an opportunity to the applicant to show C.P.1290-L of 2019 3 cause against it. The discretion of the Government to permit the setting up or enlargement of an industrial undertaking under section 3 is structured according to the conditions spelled out in section 3(b) of the Ordinance. Section 3(a) deals with the permission for establishing or enlarging an industrial undertaking in an area as a greenfield project, which is being examined by the Government for the first time. However, section 3(b) refers to the area where the Government has already satisfied itself on the basis of the information available to it and after making such inquiry as to whether the industrial undertaking to be established or enlarged is prejudicial to national interest, or injurious to health of the residents of the local area in which the industrial undertaking is proposed to be set up or enlarged, or is a source of nuisance for the residents of the local area in which the industrial undertaking is proposed to be set up or enlarged and may declare such an area to be either positive or negative area or zone as the case maybe. “Planning” is a comprehensive, coordinated and continuing process that involves identification of future goals, development of plans to achieve those goals, and devising of mechanism to give effect to those plans with a view to promoting the common good of the society.2 Zoning of the Province into positive and negative areas is a means towards achieving organized and planned industrial growth without impinging on the social, environmental, ecological, civic and economic interests of the locals. Zoning divides land into distinct geographical areas and imposes restrictions with respect to use of land in each area. These regulatory controls allow or disallow use of land in a particular geographical zone. Therefore, any application requesting permission to establish or enlarge an industrial undertaking under section 3 of the Ordinance in an area that is already marked as a zone (negative or positive) is decided accordingly. The organization and planning under the Ordinance is, therefore, in effect, actualized on the basis of the parameters mentioned under section 3(b) of the Ordinance. 5. Further, the socioeconomic concerns critical for organized and planned development existing in the year 19633 2 Craig Anthony (Tony) Arnold, ‘Planning Milagros: Environmental Justice and Land Use Regulation’ (1998) 76 Denv. U.L. Rev. 1, 90. 3 Year of the Ordinance. C.P.1290-L of 2019 4 have since multiplied and become more complex as the population has swelled from approximately 48 million in 1963 to more than 217 million in 2019.4 Organized and planned growth in the world today would undoubtedly mean “sustainable development5” and the terms prejudicial to national interest, injurious to health and source of nuisance would naturally encompass the pressing issues of the time i.e., climate change; environmental degradation; food and health safety; air pollution; water pollution; noise pollution; soil erosion; natural disasters; and desertification and flooding having an appreciable impact on public health, food safety, natural resource conservation, environmental protection, social equity, social choice, etc. The authority to regulate land use, introduce zones or negative or positive areas, has been recognized as the police power of the state, asserted for public welfare.6 The legislative policy of organized and planned growth, under the Ordinance, also synchronizes well with our constitutional values, set out in the preamble of the Constitution, as well as the Fundamental Rights and the Principles of Policy, in particular, the right to life and dignity,7 promotion of social and economic well- being of the people8 and safeguarding the legitimate interest of backward and depressed classes9. 6. We deem it necessary to observe that zoning of areas into positive and negative is not absolute. The ban under the Notification is not etched in stone but may be lifted if the Government is of the view that the valley, in this specific case, stands recharged with water and nature has become resilient to allow sustainable development. Organization and planning of future growth cannot be frozen in time and is never intended to be static. Zoning allows the flexibility needed to respond to change. The choices that govern a particular territorial zoning may not hold good indefinitely. Land use patterns change giving rise to opportunities to revise earlier standards as zoning measures are introduced in public interest.10 4 Source: World Bank. 5 development that meets the needs of the present generation without compromising the ability of future generations to meet their needs. 6 Euclid v Ambler Realty Co. 272 U.S. 365, 387. 7 The Constitution of the Islamic Republic of Pakistan 1973, arts 9 and 14. 8 ibid, art 38. 9 Ibid, art 37(a). 10 Daniel R. Mandelker, ‘Spot Zoning: New Ideas for an Old Problem’ (2016) 48 Urb. Law. 737. C.P.1290-L of 2019 5 The value of zoning lies in the flexibility by which it is administered to react to new social and economic situations.11 We, therefore, hold that zoning of areas for the purposes of the Ordinance is not absolute but is subject to change provided such change is necessitated by new circumstances. Hence, the prohibition under the Notification not to establish or enlarge an industrial undertaking in a negative area is not absolute. 7. Insofar as the objection of the petitioner that the mandate of zoning of land belongs to the local government is concerned, suffice it to say that the matter involved a trans-district issue which could be dealt with by the Provincial Government exercising the authority conferred by the Ordinance. Even so, the functions of the local government could not mean to trump the executive authority of the Provincial Government.12 The Ordinance is a special law compared to the Act and therefore takes preference. Furthermore, under section 4 of the Act, local governments have to function within the provincial framework and are to faithfully observe the federal and provincial laws. And in the performance of their functions, the local governments shall not impede or prejudice the exercise of the executive authority of the Provincial Government.
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